THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 138
PARTIES
Ms Inita Senhofa
(represented by Frank Walsh & Co., Solicitors)
and
Molina Properties Ltd t/a Justyne Flowers
(represented by Peninsula Business Services)
File Reference: EE/2007/490
Date of Issue: 16th July 2010
Claim
1.1. The case concerns a claim by Ms Inita Senhofa that Justyne Flowers Ltd discriminatorily against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, while she was pregnant.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 12 September 2007. A submission was received from the complainant on 25 March 2009. A submission was received from the respondent on 5 May 2009. On 26 January 2010, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 30 June 2010. After the hearing of the complaint, the parties requested time to explore the possibility of a settlement, and I agreed to stay my deliberations until 9 July 2010. The last piece of correspondence relating to the complaint was received on 9 July 2010, confirming that no settlement had been reached.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she commenced employment with the respondent on 25 October 2006. On 28 February 2007, she advised the respondent that she was pregnant, and requested leave for 3 March 2007 to attend an antenatal appointment. According to the complainant, the respondent refused to believe that she was pregnant and refused the leave requested for the appointment.
2.2. The complainant had previously obtained a few days leave from the respondent to fly to Cyprus on 10 March 2007, to attend to a personal matter. On her return to Ireland on 13 March 2007, the complainant phoned the respondent from the airport to enquire after details of her roster. According to the complainant, the respondent told her that they had a business to run and that there was no longer a job for the complainant with Justyne Flowers. The complainant contends that this summary dismissal without notice or explanation occurred because she was pregnant, and therefore constitutes a discriminatory dismissal on the ground of gender within the meaning of the Acts.
3. Summary of the Respondent's Written Submission
3.1. The respondent submits that the complainant had been employed as a florist. According to the respondent, she had had previous absences from work for a variety of reasons at peak times for the business, such as Christmas and Valentine's Day. The respondent accepts that the complainant advised it of her pregnancy, but claims that she failed to provide evidence from a medical practitioner.
3.2. The respondent contends that the complainant had requested time off during Mother's Day. The respondent says this was refused due to the demands of the business, as this is a busy period for florists. According to the respondent, the complainant told her line manager she was going to take time off in any event, which she subsequently did. In its submission, the respondent refers to the personal affairs of the complainant, which had necessitated the trip to Cyprus, in a very disparaging manner.
3.3. The respondent submits that the complainant was dismissed for breach of company policy and for her persistent failed to attend work. It denies dismissing the complainant on ground of her pregnancy.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of gender within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. It is not in dispute that the complainant's employment was terminated by way of a telephone call on 13 March 2007, when the complainant phoned the respondent from Dublin airport to enquire after her rosters, and was told that she no longer had a job. The complainant was pregnant at the time and eventually gave birth on 23 September 2007.
4.4. I am further satisfied that the respondent knew that the complainant was pregnant at the material time. The complainant had told the Mr G., the owner of the business, that she was pregnant towards the end of February 2007. It was the respondent's contention that they were entitled to request proof of the complainant's pregnancy, like a medical notification of her confinement date as requested under the Maternity Protection Acts. However, I am satisfied that a simple notification suffices to engage the protections which a pregnant woman enjoys under the Employment Equality Acts.
4.5. The respondent further sought to argue that it was only Mr G. who was aware that the complainant was pregnant, and that it was Mrs G., his wife, who effected the dismissal. It was further submitted that the G.'s were experiencing marital difficulties at the material time, and that therefore the fact of the complainant's pregnancy was not communicated by Mr G. to his wife.
4.6. I can not accept this argument. In DEC-E2009-043, McGloin v. Legal Aid Board, I held that once a respondent has been notified of the fact of a pregnancy, it is in possession of the relevant knowledge. Communication difficulties between an immediate supervisor and an HR department, as was the case in McGloin, or between a married couple, as in the case on hand, cannot avail a respondent as a defence to show that the individual who actually effected the dismissal did not discriminate against a pregnant complainant.
4.7. I am therefore satisfied that the complainant was pregnant, and that the respondent knew about this fact, by the time the complainant's employment was terminated. It is settled law that a pregnant employee, following EU Directive No. 92/85, is to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy, and I now move on to examine which, if any, exceptional circumstances existed which might have justified the complainant's dismissal.
4.8. It is the respondent's case that the complainant was dismissed when she insisted on taking holidays from 10 to 13 March 2007, despite the fact that all employees of the respondent's were instructed that no leave could be taken one week of either side of Christmas, Valentine's Day and Mother's Day, since these are the busiest days of the year in the floristry sector. Mother's Day in 2007 fell on the 18 March. The complainant applied for leave for the above dates, and when this was refused, told her immediate supervisor, Ms S., that she would take it anyway. It was the complainant's evidence that she needed the leave to travel to Cyprus to finalise a divorce, and the respondent accepted that the complainant notified Mrs G. of this when she applied for the leave. A copy and notarised translation of the complainant's divorce decree from Paphos Family Court, dated 12 March 2007, was submitted in evidence.
4.9. Yet despite this evidence, the respondent continued to speak of the complainant "taking holidays" during the hearing of the complaint. When I put it to Mr and Mrs G. that the necessity to attend a court date for divorce proceedings could not be said to be a "holiday" in the normal sense of the term, it was submitted that the complainant should have been aware of the date further in advance. However, I accept the submission of the representative of the complainant in the matter, who argued that his client was entirely dependent on her Cypriot lawyer for timely notification of the matter.
4.10. I therefore find that the complainant did not gratuitously insist on a holiday when she requested leave at the material time, but rather that she had a serious and pressing reason for doing so. Under the circumstances, I find that it was not reasonable for the respondent to refuse this leave request, and that the complainant's decision to undertake the trip, and to be absent from her place of work, without the respondent's approval does not amount to an exceptional circumstance which would have justified the complainant's dismissal. Accordingly, the complainant is entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Molina Properties Ltd t/a Justyne Flowers did discriminatorily dismiss Ms Inita Senhofa while she was pregnant, which amounts to a discriminatory dismissal on the ground of gender pursuant to S. 8(6) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €10,000 in compensation for the discrimination endured. This award is not in the nature of pay and therefore not subject to tax. Taking into account submissions made by the representative of the respondent regarding the respondent's current financial situation, I further order that the respondent be given an opportunity to pay this sum to the complainant in four quarterly instalments of €2,500, without interest accruing, if the respondent so wishes. If the respondent elects to pay in instalments, the first payment shall be made on 1 September 2010.
______________________
Stephen Bonnlander
Equality Officer
16 July 2010